On November 20, 2017, the United States District Court for the Northern District of California, issued a nationwide permanent injunction blocking the federal government’s attempt to strip so-called “sanctuary cities” of federal funding. Judge William Orrick ruled the executive order unconstitutional, in violation of the Fifth and 10th Amendments. Explaining the severe due process violations, Judge Orrick stated, “the Executive Order’s vague language does not make clear what conduct it proscribes or give jurisdictions a reasonable opportunity to avoid its penalties.” Judge Orrick also highlighted President Trump’s motives for crafting this executive order stating, “The President has called it ‘a weapon’ to use against jurisdictions that disagree with his preferred policies of immigration enforcement.”
While it is not a legal term, the connotation now associated with “sanctuary cities” is so far removed from how “sanctuary” was once used by those in the immigration law community. Prior to the more recent rhetoric, it was generally understood that local law enforcement in sanctuary city jurisdictions operated under lawful policies that required the release of immigrants from detention upon completion of their criminal sentence. In some jurisdictions, this was self-initiated policy, but in others, the courts weighed in to require release to protect the due process rights of detainees by preventing prolonged detention following issuance of a baseless detainer by Immigration and Customs Enforcement (ICE).
The constitutionality of “civil detainer requests” has been litigated extensively. Judge Orrick reminded us that “[s]everal courts have held that it is a violation of the Fourth Amendment for local jurisdictions to hold suspected or actual removable aliens subject to civil detainer requests” and that neither ICE nor the federal government indemnifies local jurisdictions from the potential liability they could face for Fourth Amendment violations. What does this mean? It means local jurisdictions can end up paying out taxpayer money because they complied with a detainer, which, it should be noted, are never accompanied by a judicial warrant, and deprived an individual of their liberty.
While angry voices try to paint “sanctuary cities” as lawless lands where immigration laws are not enforced and local police interfere with ICE, the truth is that no such place exists. Even Los Angeles, a city nationally recognized for its protection of immigrants, doesn’t fit that description. Immigration laws are enforced here, just like everywhere else – our immigration court is flooded with deportation cases and ICE is not shy in conducting raids and targeting individuals suspected of violating immigration laws.
Immigration law is already complex and nuanced. The distortion of terminology such as “sanctuary cities” only deteriorates the public’s ability to understand and discuss immigration policy in an informed and meaningful manner. If one person interprets the term “sanctuary city” as an undocumented immigrant playground and another interprets it as a jurisdiction adhering to the constitution, the disconnect will surely hamper dialogue. We cannot allow language and terminology to block bipartisan efforts on reform.
Immigration reform is desperately needed in America. To effectuate meaningful progress, we must first reclaim the runaway terminology exacerbating partisanship and the disconnect between opposing ideologies. Even the executive order is ambiguous in labeling jurisdictions as “sanctuary cities.” Judge Orrick noted the complete arbitrariness and poor execution of the executive order when he noted that the term “sanctuary jurisdiction” is not defined anywhere in the executive order.
The injunction represents an important reminder of our system of checks and balances. Regardless of the administration’s bullying and ransom tactics, the constitution cannot be ignored.